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Officer Outside Village Limits Did Not Have Jurisdiction to Arrest for Traffic Offenses but Arrest for DWI Okay

The Fourth Department determined a police officer, who was outside his jurisdiction when he arrested the defendant for DWI and traffic offenses, did not have the authority to arrest for the “petty offenses” but did have the authority to arrest for DWI:

The authority of a police officer to arrest an individual for a “petty offense” is limited to circumstances in which the officer “has reasonable cause to believe that such person has committed such offense in his or her presence” (CPL 140.10 [1] [a]), and “only when .. . [s]uch offense was committed or believed by him or her to have been committed within the geographical area of such police officer’s employment or within one hundred yards of such geographical area” (CPL140.10 [2] [a]).  The term “petty offense” is defined as “a violation or a traffic infraction” (CPL 1.20 [39]). Here, the arresting officer is employed by the Village of Gowanda, and it is undisputed that the arrest did not take place within 100 yards of the village limits. Thus, we conclude that the officer exceeded his jurisdictional authority when he arrested defendant for committing the traffic infractions, and the court should have granted defendant’s motion insofar as it sought dismissal of those counts.

We further conclude, however, that the court properly refused to dismiss counts one and four of the indictment, charging defendant with felony driving while intoxicated and resisting arrest, respectively. Pursuant to CPL 140.10 (3), a police officer may arrest a person for a crime, as opposed to a petty offense, “whether or not such crime was committed within the geographical area of such police officer’s employment, and he or she may make such arrest within the state, regardless of the situs of the commission of the crime.”  People v Twoguns, 668, 4th Dept 7-5-13

 

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Motion to Vacate Conviction Based upon Co-Defendant’s Affidavit Stating Defendant Not Involved Denied

In affirming the denial of a 440 motion to vacate defendant’s conviction based upon a co-defendant’s affidavit stating the defendant was not involved in the crimes, the Fourth Department wrote:

It is well settled that on a motion to vacate a judgment of conviction based on newly discovered evidence, the movant must establish, inter alia, that “there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence” ….  People v Smith, 642, 4th Dept 7-5-13

 

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Evidence Insufficient to Support Criminal Contempt in the First Degree—No Evidence of Intent to Harass (Two Dissenting Justices)

The Fourth Department, over a dissent by two justices, determined the evidence was legally insufficient to support criminal contempt in the first degree:

Even assuming, arguendo, that the evidence is legally sufficient to establish that defendant repeatedly made telephone calls to his ex-girlfriend, we agree with him that the evidence is legally insufficient to establish that he intended by those calls to harass, annoy, threaten or alarm her, with no purpose of legitimate communication (see § 215.51 [b] [iv];….    Rather, the only inference to be drawn from the evidence is that defendant made the calls with the intent to discuss issues of child support and visitation, not to harass, annoy, threaten or alarm his ex-girlfriend. We therefore modify the judgment accordingly.  People v Webb, 619, 4th Dept 7-5-13

 

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440 Motion Seeking DNA Testing of Evidence Properly Denied

In affirming the denial of a 440 motion by a defendant convicted of murder seeking DNA testing of blood evidence, the Fourth Department wrote:

We conclude that the court properly denied that part of the motion seeking testing … “because defendant failed to establish that there was a reasonable probability that, had those items been tested and had the results been admitted at trial, the verdict would have been more favorable to defendant”… .  People v Swift, 617, 4th Dept 7-5-13

 

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Evidence Needed to Corroborate Accomplice Testimony and Evidence Admissible at Restitution Hearing Explained

In affirming the conviction, the Fourth Department explained the criteria for corroboration of accomplice testimony, and the admissible evidence in a restitution hearing:

“New York’s accomplice corroboration protection requires only enough nonaccomplice evidence to assure that the accomplices have offered credible probative evidence that connects the accomplice evidence to the defendant”…. Even the most “[s]eemingly insignificant matters may harmonize with the accomplice’s narrative so as to provide the necessary corroboration” (id. [internal quotation marks omitted]).    Here, defendant’s accomplice testified that he assisted defendant in burglarizing the victim’s home and stealing the victim’s car, and that testimony was corroborated by the testimony of other witnesses that defendant was seen driving the victim’s stolen car the day after the burglary.* * *

The victim testified at the restitution hearing and provided a detailed breakdown of the value of the stolen items as well as documents establishing the cost of replacing the ignition and locks on her vehicle, which was returned to her. In addition, the amount of restitution owed to the victim’s insurance company, which was financially harmed by reimbursing the victim for a portion of the cost of changing the ignition and locks on her vehicle, was supported by the claim it submitted to the Genesee County Probation Department. It is immaterial that an employee of the insurance company did not testify at the restitution hearing because “[a]ny relevant evidence, not legally privileged, may be received [at a restitution hearing] regardless of its admissibility under the exclusionary rules of evidence” (CPL 400.30 [4] …). People v Wilson, 275, 4th Dept 7-5-13

 

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Action Seeking to Enjoin Closure of Charter School Dismissed

Plaintiffs brought an action for injunctive relief against the Board of Regents which had denied the application of plaintiff Pinnacle Charter School to renew its charter. Supreme Court had granted a preliminary injunction and dismissed one cause of action. The Fourth Department reversed the preliminary injunction and dismissed the complaint entirely, including the causes of action alleging a violation of due process and a violation of the Administrative Procedure Act:

The first and second causes of action allege, respectively, that the determination of the Board of Regents violated Pinnacle’s due process rights under the State Constitution (NY Const, art I, § 6) and the Federal Constitution (US Const, 14th Amend, § 1). We agree with defendants that the New York Charter Schools Act (Education Law art 56) creates no constitutionally protected property interest in the renewal of a charter and thus that the first and second causes of action fail to state a cause of action… * * *

…[W]e agree with defendants that the Board of Regents was acting pursuant to its discretionary authority when it denied Pinnacle’s renewal application, and it was not required to promulgate any rules pursuant to article 2 of the State Administrative Procedure Act with respect to its exercise of such authority… .  Pinnacle Charter School, et al v Board of Regents, et al, 432, 4th Dept 7-5-13

 

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Damages in Firefighters’ Discrimination Suit Modified

The Fourth Department modified the Supreme Court’s damages assessment in a case brought by firefighters against the City of Buffalo (and named individuals) “alleging that [the City] discriminated against them by allowing promotional eligibility lists created pursuant to the Civil Service Law to expire solely on the ground that plaintiffs, who were next in line for promotion, were Caucasian.” The order finding the City liable was issued based upon the US Supreme Court’s ruling in Ricci v DeStefano (557 US 557) which held “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious discriminatory action”… .In affirming that order (in a prior appeal), the Fourth Department determined the City “did not have a strong basis in evidence to believe that they would be subject to disparate-impact liability if they failed to take the race-conscious action, i.e., allowing the eligibility lists to expire” … .  The case came before the Fourth Department this time with respect to damages-issues only.  The Fourth Department affirmed the damages for emotional distress, but modified the economic damages finding that Supreme Court had erred in placing the burden of proof on the defendants to establish plaintiffs’ economic damages, and noting that damages for loss of future earnings should be based on the difference between what he or she is now able to earn and what he or she could have earned in the absence of discrimination. The Fourth Department determined some of the expert-findings were too speculative.   Margerum, et al v City of Buffalo, et al, 421, 4th Dept 7-5-13

 

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Elements of Malicious Prosecution, False Arrest, False Imprisonment, Libel and Slander Explained

In affirming Supreme Court, which dismissed some causes of action and allowed others to stand, the Fourth Department explained elements of several intentional torts, including malicious prosecution, false arrest, false imprisonment, libel and slander.

Malicious prosecution:

“The elements of the tort of malicious prosecution are:(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” . ;. . “In the context of a malicious prosecution cause of action, probable cause ‘consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty’ ”…Actual malice “means that the defendant must have commenced the . . . criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served”… . * * *

False arrest, false imprisonment:

It is well settled that a plaintiff’s appearance in court as a result of the issuance of a criminal summons or appearance ticket is insufficient to support a claim of false arrest or false imprisonment…, and here “the record establishes that plaintiff was never arrested or held in actual custody by any law enforcement agency as a result of the charge . . . filed against [him]” … .

Libel:

…W]e conclude that the court properly denied that part of their motion seeking to dismiss the libel cause of action (eighth cause of action). [Defendant’s] statement that plaintiff made “several threats toward[] [defendant] and [her] residence,” which was contained in her supporting deposition that she provided to the police, “tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or [to] induce an evil opinion of him in the minds of right-thinking persons” … .Moreover, contrary to the contention of the …defendants, proof of special damages is not required for libel on its face or libel per se…

Slander:

The two allegedly defamatory statements pleaded in the complaint do not constitute slander per se because they do not “charg[e] plaintiff with a serious crime” or “tend to injure [plaintiff] in his . . . trade, business or profession”… .Contrary to the contention of plaintiff, stalking in the fourth degree does not constitute a “serious crime” for purposes of slander per se … . “To be actionable as words that tend to injure another in his or her profession, the challenged statement must be more than a general reflection upon [the plaintiff]’s character or qualities. Rather, the statement must reflect on [the plaintiff’s] performance or be incompatible with the proper conduct of [the plaintiff’s] business”… .  Zetes v Stephens, et al, 406, 4th Dept 7-5-13

 

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Respondents in Visitation Proceeding Have Right to Assigned Counsel

The Fourth Department reversed and remitted a visitation proceeding to Family Court because Family Court had relieved assigned counsel, noting that the Fourth Department had recently held respondents in visitation proceedings are entitled to assigned counsel:

Family Court erred in relieving his assigned counsel after the modification petition, which sought full legal custody of the three children at issue, was amended to seek only a modification of respondent’s visitation (amended petition).  While this appeal was pending, we held that respondents in visitation proceedings are entitled to assigned counsel… . Matter of Brown v Patterson, 768, 4th Dept 7-5-13

 

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